2210952 (Refugee) - [2024] ARTA 604

2210952 (REFUGEE) [2024] ARTA 604 (1 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2210952
Tribunal:Senior Member- Denis Dragovic
Date:1 November 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Senior Member D Dragovic
Statement made on 1 November 2024 at 10.29am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – supporter of Awami National Party and anti-Taliban – relatives killed, applicant and father beaten and applicant threatened – mother a teacher and supporter of education for girls – attempted extortion and forced recruitment – volunteer for organisation and member of village defence committee – mental health and work injury – livelihood, proper treatment and self-harm – low-level membership and activities – passage of time and no harm to remaining relatives – country information – security initiatives and general situation moderately safe – lack of adequate medical support applies generally and self-harm not persecutory – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES

BVT20 v MICMSMA [2020] FCAFC 222
Chan Yee Kin v MIEA (1989) 169 CLR 379

CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
EZC18 v MHA [2019] FCCA 464; [2019] FCA 2143
MIAC v SZQRB (2013) 210 FCR 505

MZAAJ v MIBP [2015] FCA 478
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 July 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Pakistan. He applied for the visa on 19 December 2017. The delegate refused to grant the visa and the applicant appealed that decision to the then Administrative Appeal Tribunal.
The applicant appeared before the Administrative Review Tribunal (“the Tribunal”) on 25 September 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
The applicant was receiving mental health since October 2019, but the nature of the support changed after he sustained while working in [work sector] on 19 October 2022.
The medical reports arising from the head injury offered somewhat contrary views on his current capacity. The most recent TAC assessment following an examination on 20 August 2024 notes that he is ‘currently unfit to work due to persisting headaches, dizziness, lethargy and tiredness.’ Whereas the one prior, from an assessment on 24 June 2024 states, ‘other work not in [work sector] appropriate, able to do certificate assistant in [subject] course and once completed commence work in the field.’ It adds under mental health, ‘headaches improving, concentration still affecting, dizziness less but still present’.
The applicant was receiving regular…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2210952 (Refugee)

Details

AGLC: 2210952 (Refugee) [2024] ARTA 604
Case: [2024] ARTA 604
Decision Date: 1 November 2024

CaseChat Overview and Summary

In the case of 2210952, the applicant, a national of Pakistan, sought a protection visa on the grounds of political opinion, persecution, and risk of significant harm. The matter was heard in the Administrative Appeals Tribunal, with the decision under review affirmed. The primary legal issues revolved around whether the applicant met the criteria for a protection visa under the Migration Act, specifically whether they qualified as a refugee under the ‘refugee’ or ‘complementary protection’ criteria.

The Tribunal examined the applicant’s claims of past persecution due to their support for the Awami National Party and their opposition to the Taliban. The applicant alleged that their relatives were killed, they and their father were beaten, and they were threatened. Additionally, the applicant highlighted their mother’s role as a teacher and advocate for girls’ education, their volunteer work, and their involvement in a village defence committee. The Tribunal also considered the applicant's mental health issues, work-related injuries, and the general security situation in Pakistan.

The Tribunal found that while the applicant had experienced harm, the passage of time and lack of further incidents suggested a diminished risk. The Tribunal concluded that the general security situation in Pakistan had improved, and although medical support was limited, the self-harm experienced by the applicant did not constitute persecution. The Tribunal ultimately affirmed the decision under review, finding that the applicant did not meet the criteria for a protection visa.

No additional orders were made by the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The representative then went on to identify an interaction and suggested that it was inappropriate. The representative provided reasons. I have not engaged with this further as it is the remit of the courts, if the applicant chooses to test this area of concern, as to whether the tone and content was appropriate.CONSIDERATION OF CLAIMS AND EVIDENCECriteria for protection visa The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b). Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

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